WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 45 (7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Court File No.: C47285/09

Date: 2013-06-19

Ontario Court of Justice

Toronto North Family Court

Parties

Between:

Children's Aid Society of Toronto

Karen Freed, for the Applicant

Applicant

- and -

C.K., T.M. and G.B.

Respondents

Jason W. Gottlieb, for the Respondent, C.K.

- and -

P.M.

Moving Party

- and -

J.B. and B.C.

Proposed Added Parties

Dawn M. Bennett, for the Respondent, G.B.

The Respondent, T.M., not participating

Sheldon Tennenbaum, for the Moving Party, P.M.

Raymond Sharpe, for the Proposed Added Parties, J.B. and B.C.

Lynda S. Ross, on behalf of the Office of the Children's Lawyer, for the child J.K.

Heard: June 18, 2013

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] There are two motions before the court. P.M. is the maternal grandmother of the subject children in this case, J.K., age 6, and Chr. K., age 3 (the children). She has brought a motion to be added as a party as she wishes to present a plan for the children to be placed in her care.

[2] The second motion has been brought by G.B., the father of the children. He asks that his parents, J.B. and B.C. (the paternal grandparents) be added as parties to the case. The paternal grandparents live with the father and are integrally involved in caring for the children. The paternal grandparents retained counsel and made submissions on this motion.

[3] These motions are brought within this status review application. The society is seeking an order in this application to place the children with the father, subject to their supervision, for a further period of six months.[1] The children have been in the father's care, subject to supervision orders, since May of 2011. The existing supervision order was made on May 14, 2012.

[4] The father opposes the motion brought by the maternal grandmother.

[5] The mother of the children is the respondent C.K. (the mother). She has filed an Answer/Plan of Care asking that the children be placed in her care. The children were removed from her and placed in the care of the father in May of 2011 due to a multiplicity of protection concerns including: her substance abuse, her mental health challenges, her difficulty coping with the children, her dysfunctional relationships with the maternal grandmother and the father and her challenges in providing the children with a safe and secure environment.

[6] The existing access order is for the mother's access to be in the discretion of the society. Presently, the mother has access to the children for one overnight each week, supervised by a community member. The mother has brought a motion for increased access. This motion is scheduled to be heard in July.

[7] The mother supports the motion of the maternal grandmother and opposes the motion to add the paternal grandparents as parties.

[8] The Children's Aid Society of Toronto (the society) takes no position on the motion of the paternal grandparents and opposes the motion of the maternal grandmother.

[9] Counsel for the child J.K., from the Office of the Children's Lawyer, took no position on the motions.

Part Two – Legal Considerations

[10] Subrule 7(5) of the Family Law Rules (the rules) states that the court may order that any person who should be added as a party shall be added as a party.

[11] The court in Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R., set out the following principles for the court to consider before adding a party to a child protection proceeding:

(i) whether the addition of the party is in the best interests of the child,

(ii) whether the addition of the party will delay or prolong proceedings unduly,

(iii) whether the addition of the party is necessary to determine the issues, and

(iv) whether the additional party is capable of putting forward a plan that is in the best interests of the child.

[12] In Children's Aid Society of Algoma v. V.C., 2011 ONCJ 83, Justice John Kukurin wrote at par. 19:

The case of Children's Aid Society of London and Middlesex v. S.H., S.W. and D.R., supra, does not stand for the proposition that all four of the "criteria" mentioned in that case must favour the motion applicant before the court can add that person as a party under subrule 7(5). This subrule uses the words "may order", which denotes a permissiveness that should be exercised judicially. In other words, judicial discretion.

[13] The ability of an existing party to present a plan of placement of a child with a non-party can be a significant consideration in deciding whether to add that non-party. See: Catholic Children's Aid Society of Toronto v. H.(D.), 2009 ONCJ 2.

[14] That someone may have relevant evidence in a case does not elevate them from a witness to party status. See: Noik v. Noik (2001) R.F.L. (5th) 370 (Ont. S.C.J.).

[15] It is not necessary for the court to determine at this stage whether the plan of the proposed added parties would be successful; the question at this stage is whether their plans merit consideration, despite the delay in bringing it. See: Catholic Children's Aid Society of Toronto v. H.(D.), supra.

Part Three - The Maternal Grandmother's Motion

[16] The maternal grandmother submitted that she wishes to put forward a plan to care for the children in the event that the mother's plan is not approved by the court. She deposed that the society has frustrated her access to the children and she seeks a generous access order.

[17] The child J.K. was removed by the society from the mother's care in June of 2009 and placed with the maternal grandmother. The child was returned to the mother in December of 2009. The society's protection application was terminated in June of 2010. One of the risk concerns during that protection proceeding was the high level of conflict between the mother and the maternal grandmother.

[18] The maternal grandmother deposed that she has no concerns with the care of the child Chr. K. by the father. She did have complaints about his care of the child J.K.

[19] The society has no concerns about the quality of the parenting that the father and the paternal grandparents are providing for the children so long as the father remains separated from the mother (due to their high-conflict relationship).

[20] The maternal grandmother did not present a plan to care for either of the children when they were removed from the mother's care in May of 2011. She did not participate in the protection application that resulted in a finding that the children were in need of protection and a disposition placing the children with the father, subject to society supervision. The evidence indicates that she did not ask to see the children between June and November of 2012 and has had sporadic contact with them since they were placed in the father's care in May of 2011. She has a very limited relationship with the child Chr. K. The children are thriving in their current placement and there is no reason at this time to consider placing them in an alternate family placement other than with a parent.

[21] The maternal grandmother conceded that she does not have adequate housing for the children at this time.

[22] A serious risk concern in this case has been the high degree of adult conflict that the children have been exposed to. The maternal grandmother has been a major source of this conflict. It was conceded that historically there has been significant conflict between her and the mother.[2] The maternal grandmother also has volatile relationships with the father, the paternal grandparents and the society. The society material outlines that she is often verbally abusive to workers, continually complains about them and is very difficult to work with. The maternal grandmother showed no insight in her material about her behaviour and its impact on the children. She was focused on her grievances.

[23] The maternal grandmother asked to speak to the court after her counsel made submissions. She used this opportunity to make an emotional attack against the society, the father and the paternal grandparents. She is a very angry person. Her lack of emotional regulation was troubling to the court and corroborated the evidence about her behaviour provided by the society and the father. Her addition as a party would only serve to escalate the conflict between the parties. This is not in the children's best interests.

[24] The addition of the maternal grandmother would also unduly delay the proceeding, particularly since she is only presenting an alternative plan. Her involvement would extend any hearing in this matter, make the case more unwieldy to manage and add cost to the parties.

[25] The addition of the maternal grandmother is not necessary to determine the best interests of the children. The mother can, if she wishes, call the maternal grandmother as a witness.

[26] The maternal grandmother's major concern appears to be about her access. The existing order provides that the maternal grandmother's access is in the discretion of the society. The society is permitting her to have access when the children are with the mother – this access being supervised by the community member. The maternal grandmother does not have to be added as a party to bring a motion for access. She can bring this motion pursuant to section 58 of the Child and Family Services Act (the Act).

[27] It is not in the best interests of the children to add the maternal grandmother as a party to this case. She has not put forward a plan that merits further consideration by the court. Her motion is dismissed.

Part Four – Should the Paternal Grandparents be Added as Parties?

[28] The father deposed that he resides with the paternal grandparents and his two sisters. He described a very close family relationship where all members of the family assist in parenting the children. He deposed that his parents have been an excellent support system for himself and the children.

[29] The paternal grandmother left her job to stay at home with the children while the father is at work. Both of the paternal grandparents have close relationships with the children. The paternal grandparents submitted that they are equal caregivers for the children with the father.

[30] The society's evidence is that the family works very well together in parenting the children. The society views the paternal grandparents' role as essential to the father's plan and indicated that if the father wanted to leave the home at this time, they would want the children to remain with the paternal grandparents.[3]

[31] The paternal grandparents submitted that they should have been named as parties to the status review application pursuant to subrule 7(4) of the Family Law Rules. This subrule reads as follows:

PARTIES IN CASES INVOLVING CHILDREN

(4) In any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child and Family Services Act, shall be named as a party, unless the court orders otherwise:

1. A case about custody of or access to a child.
2. A child protection case.
3. A secure treatment case (Part VI of the Child and Family Services Act).

[32] The paternal grandparents submit that, together with the father, they have had care and control of the children since May of 2011.

[33] The court disagrees with this submission. The paternal grandparents have shared in the care of the children, but do not have control over them. The children have been placed by the court, subject to supervision orders, in the custody of the father, not the paternal grandparents. The father, not the paternal grandparents, has the exclusive legal right to make decisions about the children, including their medical care, religion and education. He is the person who has control of them.

[34] The paternal grandparents next submitted that they should be added as parties under subrule 7(5) of the rules. They submit that they should have been added as a party under subclause ii of clause 7(b)(3) of the rules, claiming that granting party status is necessary to enable the court to decide all the issues in this case. Subrule 7(3) reads as follows:

PERSONS WHO MUST BE NAMED AS PARTIES

7(3) A person starting a case shall name,

(a) as an applicant, every person who makes a claim;

(b) as a respondent,

(i) every person against whom a claim is made, and

(ii) every other person who should be a party to enable the court to decide all the issues in the case.

[35] The legal considerations set out in section 2 above apply to this submission by the paternal grandparents.

[36] There is some merit to the paternal grandparents' motion. The court accepts that they are very involved in caring for the children. The society views them as integral to the father's plan. They have an interest in the outcome of this case.

[37] However, this evidence does not rise to the level where the paternal grandparents should be added as parties. The paternal grandparents do not need to have party status for the court to properly address the best interests of the children. The paternal grandparents are firmly aligned with the father. Their plan is his plan and can be properly presented through him. The father was the person who moved to add them as parties. They are clearly working closely and effectively together.

[38] The relationship between the father and the paternal grandparents has been stable for many months. This is not a case where an aligned relationship is unstable and the plan of the paternal grandparents might be compromised if they are not added as parties.[4] If the stability of the relationship between the father and the paternal grandparents changes in the future, this motion can be renewed.[5] There is no evidence that this is likely to happen.

[39] The paternal grandparents argued that they have important evidence to give to the court. This does not elevate them to party status. There is no reason that the father cannot call them as witnesses at the trial, or present their affidavit evidence on any motion.

[40] The addition of the paternal grandparents as parties would unduly delay the case for the same reasons the court set out in dismissing the maternal grandmother's motion. There are already multiple lawyers involved in this case. It is not in the children's best interests to delay the case or unduly lengthen any trial.

[41] There is also an element of unfairness to the mother in adding the paternal grandparents as parties. This would add yet one more lawyer who would be cross-examining her and challenging her plan.

[42] The father's motion to add the paternal grandparents as parties to this case is dismissed.

Part Five – Should the Paternal Grandparents be Entitled to Participate in this Case?

[43] Although the court is not adding the paternal grandparents as parties, the discussion of the paternal grandparents' involvement in the case does not end there. The court finds that the paternal grandparents are entitled to specified rights to participate in this case.

[44] Subsection 39(3) of the Act gives specified rights of participation in a case to persons who have cared for a child continuously during the six months immediately before the hearing. This subsection reads as follows:

Right to participate

(3) Any person, including a foster parent, who has cared for the child continuously during the six months immediately before the hearing,

(a) is entitled to the same notice of the proceeding as a party;

(b) may be present at the hearing;

(c) may be represented by a solicitor; and

(d) may make submissions to the court,

but shall take no further part in the hearing without leave of the court.

[45] The class of persons falling within the definition of subsection 39(3) are not parties. Such persons however have some limited rights, equivalent to parties, such as receiving notice, being present at the hearing, being represented by a solicitor and making submissions to the court. Such persons are not allowed to take any further part in the hearing without leave of the court. See: Children's Aid Society of the Region of Peel v. D.B., [1995] O.J. No. 3138 (OCJ). This means that they cannot call evidence or cross-examine witnesses without leave of the court.

[46] Subsection 39(3) of the Act does not contain a prerequisite, as contained in subrule 7(4) of the rules, that the paternal grandparents must have care and control of the children – it only requires that they have cared for the children continuously for the past six months. The subsection does not limit the number of persons who are entitled to participate in the case to just one.[6] However to fall within this subsection the person should be an essential caregiver for a child. To interpret otherwise could lead to a flood of persons applying for participation rights in a case. This would unduly complicate and delay cases and not be in the best interests of children.

[47] This court finds that the paternal grandparents, together with the father, have all been essential caregivers for the children, continuously, for over two years. The evidence indicates that they have shared responsibility in caring for the children and work as a team. The paternal grandparents will be permitted to participate in this case as provided for in subsection 39(3) of the Act.

Part Six - Conclusion

[48] Orders will go on the following terms:

a) The maternal grandmother's motion to be added as a party to this case is dismissed.

b) The father's motion to add the paternal grandparents as parties to this case is dismissed.

c) The paternal grandparents shall be permitted to participate in this case as provided for in subsection 39(3) of the Child and Family Services Act.

[49] I thank counsel for their submissions.

Justice S.B. Sherr

Released: June 19, 2013

Footnotes

[1] G.B. is the father of C.K. and the stepfather of J.K. The father of J.K. is the respondent, T.M. He has not participated in this case.

[2] The mother and the maternal grandmother both state that there has been some improvement in their relationship.

[3] This scenario is not being proposed by the father. His plan is to continue to live with his parents and receive their support.

[4] I found this to be an important factor in adding a grandparent as a party in Children's Aid Society of Toronto v. M.T., 2012 ONCJ 786.

[5] I note that my analysis in this case might have been different if the paternal grandparents had moved to be added as parties in January of 2013, when their relationship with the father was less stable, due to the parents' attempt at reconciliation. The parents have remained separate and apart since that time.

[6] More than one person might care for a child under this subsection. It is analogous to the case law that has established that more than one person can have charge of a child at the time of an apprehension. See: Children's Aid Society of Toronto v. A.(S.) and R.(M.), 2008 ONCJ 348 per Justice Robert J. Spence.